Waiver of Non-Federal Share of Tribal Child Support Program Expenditures
POLICY INTERPRETATION QUESTIONS — TRIBAL
DATE: October 15, 2020
TO: Tribal IV-D Agencies
FROM: Scott M. Lekan, Acting Commissioner, Office of Child Support Enforcement
SUBJECT: Waiver of Non-Federal Share of Tribal Child Support Program Expenditures
Question 1: Does the tribal child support regulation permit a temporary waiver of the non-federal share of tribal child support program expenditures?
Answer 1: Yes. The regulation at 45 CFR 309.130(e) Visit disclaimer page provides that, under certain circumstances, OCSE may grant a temporary waiver of part or all of the non-federal share of program expenditures. This provision permits the following two types of temporary waiver requests that a tribe may submit for consideration.
- Anticipated temporary waiver request
- Emergency waiver request
Question 2: What is an anticipated temporary waiver request?
Answer 2: Under 45 CFR 309.130(e)(1)(i) Visit disclaimer page, when a tribe or tribal organization anticipates that it will be temporarily unable to contribute part or all of the required non-federal share of program funding, it must submit an anticipated temporary waiver request. The federal funding period begins on October 1. The tribe must send the request to OCSE, along with the SF-424A, no later than 60 days prior to the start of the funding period for which the waiver is being requested, which is August 1. The request for a waiver must be submitted in accordance with the procedures specified in 45 CFR 309.130(e)(2), (3) and (4) Visit disclaimer page. An untimely or incomplete request will not be considered. Therefore, we strongly encourage tribes to work with their OCSE Regional Program Specialist to develop a request that complies with the tribal regulations.
Question 3: What is an emergency waiver request?
Answer 3: Under 45 CFR 309.130(e)(1)(ii) Visit disclaimer page, if, after the start of the funding period, an emergency situation occurs, such as a hurricane or flood, that warrants a waiver of the non-federal share of program expenditures, a tribe may submit a request. The request for a waiver must be submitted in accordance with the procedures specified in 45 CFR 309.130(e)(2), (3) and (4) Visit disclaimer page. Tribes must submit an emergency waiver request as soon as they know the adverse effect of the emergency situation.
Question 4: What must a tribe include in the waiver request?
- A statement of the amount of the non-federal share that the tribe is requesting to be waived
- A narrative statement describing the circumstances and justification for the waiver request
- Portions of the tribal budget for the funding period sufficient to demonstrate that any funding shortfall is not limited to the tribal IV-D program and that any uncommitted tribal reserve funds are insufficient to meet the non-federal funding requirement
- Copies of any additional financial documents in support of the request
- A detailed description of the attempts made to secure the necessary funds and in-kind contributions from other sources and the results of those attempts, including copies of all relevant correspondence
- Any other documentation or other information that OCSE may require to make this determination
In accordance with § 309.130(e)(3) Visit disclaimer page, the tribe or tribal organization must demonstrate that it temporarily lacks resources to provide the non-federal share. In its request for a waiver, the tribe or tribal organization must be able to demonstrate that it:
- Lacks sufficient resources to provide the required non-federal share of costs
- Has made reasonable, but unsuccessful, efforts to obtain non-federal share contributions
- Has provided all required information requested
Additionally, in accordance with § 309.130(e)(4) Visit disclaimer page, all statements in support of a waiver request must be supported by evidence including, but not limited to, a description of how the tribe or tribal organization's circumstances relate to its capacity to provide child support enforcement services. The tribe must submit documentary evidence sufficient to support the waiver. Standing alone, the following statements will be considered insufficient to merit a waiver under this section:
- Funds have been committed to other budget items
- A high rate of unemployment
- A generally poor economic condition
- A lack of or a decline in revenue from gaming, fishing, timber, mineral rights and other similar revenue sources
- A small or declining tax base
- Little or no economic development
Question 5: Should tribes include a revised SF-424 and SF-424A in their emergency waiver requests?
Answer 5: A tribe may submit a budget revision for the remaining fiscal year with their emergency waiver request if they want to modify their original budget to reflect the impacts of the emergency. A revised SF-424 and SF-424A must accompany the request. If approved, OCSE will issue a grant award reflecting the revised total budget, federal share, and non-federal share for the fiscal year.
When an approved emergency waiver request does not contain a budget revision, OCSE will issue a new grant award reflecting the original total budget, revised federal share, and revised non-federal share. Specifically, OCSE will add the non-federal share amount waived to the federal share amount.
Question 6: When is the waiver request due?
Answer 6: The federal funding period begins on October 1. Anticipated temporary waiver requests are due no later than 60 days prior to the start of the funding period for which the waiver is being requested, which is August 1. Please submit the waiver request with your annual grant application, which is also due August 1. Tribes may submit their requests as supporting documentation to their grant applications submitted through GrantSolutions. Alternatively, tribes may submit their waiver requests to the OCSE Tribal Team at OCSE.Tribal@acf.hhs.gov.
Emergency waiver requests are due as soon as the tribe knows the adverse effect of the emergency situation. However, to provide OCSE with adequate time to process the request and issue a new notice of grant award, we strongly encourage tribes to submit emergency waiver requests no later than August 1, which is 60 days prior to the end of the fiscal year. Send these requests to the OCSE Tribal Team at OCSE.Tribal@acf.hhs.gov.
Question 7: What is the duration of a waiver?
Answer 7: In accordance with § 309.130(e)(5) Visit disclaimer page, if approved, a temporary waiver submitted under § 309.130(e)(1)(i) or (ii) Visit disclaimer page will expire on the last day of the funding period for which it was approved, is subject to review at any time during the funding period, and may be revoked if changing circumstances warrant. Unless the tribe receives a written approval of its waiver request, the funding requirements stated in § 309.130(d) Visit disclaimer page remain in effect.
We strongly encourage tribes with approved waivers to review their expenditures, make any appropriate cost reductions and efficiency improvements, and work towards securing cash or in-kind contributions to meet the non-federal share of program funding for the next fiscal year.
Question 8: May a tribe appeal a denied waiver?
Question 9: Does the waiver provision under the HHS Tribal Consultation Policy supersede the waiver requirements under 45 CFR 309.130(e)?
Answer 9: No. The HHS Tribal Consultation Policy’s waiver provision applies to the extent practicable and permitted by law or regulation and does not supersede the waiver requirements under 45 CFR 309.130(e) Visit disclaimer page.
INQUIRIES: ACF OCSE Regional Program Managers